- THE SOLUTION. MHE has developed a web-based solution that enables users to access certain online products and services offered by MHE (the "Solution") through the website located at http://connected.mcgraw-hill.com (the "Website"). MHE hereby grants Subscriber a non-exclusive, non-transferable right to access and use the Solution, and allow its End Users to access and use the Solution, through the Website, solely for educational purposes (the "License").
- USER NAMES AND ACCESS CODES. MHE shall provide an individualized user name and access code to initiate access to the Solution by Subscriber's designated administrator(s) identified on the Registration Page or designated by Subscriber in writing (the "Subscriber Administrator(s)"). The Subscriber Administrator(s) shall create an individualized user name for each administrator, faculty member, and student enrolled by the Subscriber (each a designated "End User"). MHE or its third party service provider shall provide Subscriber with an access code for the End Users to access the Solution (the "Access Code"). Subscriber shall be solely responsible for keeping an accurate record of the Access Code and user name assigned to each End User.
- ADDITIONAL SERVICES. MHE may enhance and/or expand the features of the Solution from time to time at no additional cost to Subscriber, or may provide additional content, performance or features that may, but are not required to, be added by Subscriber at additional cost to Subscriber. Subscriber may request MHE to integrate the Solution with Subscriber's learning management system ("LMS") to enable End Users to access the Solution through a single sign on process ("SSO"). Any Professional Services to be provided by MHE to Subscriber in connection with the Solution shall be set forth in a separate Professional Services Agreement between MHE and Subscriber.
- APPLICABLE LAW. Subscriber is familiar with and agrees to be responsible for compliance with the Children's Online Privacy Protection Act of 1998 ("COPPA"), the Family Educational Rights and Privacy Act and the US Department of Education's implementing regulations at 34 CFR Part 99 (collectively, "FERPA"); and all other laws rules or regulations concerning the collection, use, and disclosure of Personal Information about End Users accessing the Services that are the subject of this Agreement (collectively, "Applicable Law"). "Personal Information" means any and all information that could, individually or when combined with other information, identify an individual.
- SUBSCRIBER INFORMATION. All information concerning Subscriber, and Personal Information concerning End Users (collectively, "Subscriber Information") shall belong to the Subscriber. Subscriber assumes sole responsibility for: (a) providing notice to the extent required under COPPA or other Applicable Law in connection with the collection, use and/or disclosure of Personal Information from End Users; (b) obtaining verifiable prior parental consent as required under COPPA or other Applicable Law in connection with the collection, use, and/or disclosure of Personal Information obtained from End Users; (c) providing a reasonable means for parents to review Personal Information provided by End Users to the extent required by COPPA or other Applicable Law; and (d) establishing and maintaining reasonable procedures to protect the confidentiality, security, and integrity of the Personal Information.
- MHE USE OF SUBSCRIBER INFORMATION. As a service provider to Subscriber, MHE will establish and maintain reasonable procedures in accordance with its policies and practices and Applicable Law to protect the confidentiality, security, and integrity of Personal Information and Subscriber Information received by MHE in connection with provision of the Solution to Subscriber. Subscriber acknowledges and agrees that MHE has the right to use the Personal Information and Subscriber Information collected in connection with provision of the Solution for (a) purposes of performing its obligations under this Agreement, and (b) for research purposes in connection with quality control and the development of revised or new products or services ("Research Purposes"), provided that such Personal Information and Subscriber Information will be used by MHE for Research Purposes only in the aggregate and so that the privacy of the individual's Personal Information will be maintained. MHE shall enable Subscriber to maintain compliance with FERPA in connection with its use of the Solution.
- RESTRICTIONS ON USE. Subscriber shall not, and shall cause its employees, officers, directors, members, managers, partners, agents, third party service providers, or other designated persons (its "Representatives") not to, take any of the following actions: (a) creating or enabling the creation of derivative works, modifications, or adaptations of the Solution; (b) decompiling, reverse engineering or disassembling the Solution, (c) distributing or disclosing the Solution to third parties; (d) removing or modifying any proprietary marking or restrictive legends placed on the Solution; or (e) using any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Solution.
- EFFECT OF TERMINATION OR EXPIRATION. Subscriber's right to use the Solution shall end immediately upon any termination or expiration of this Agreement, and Subscriber shall immediately cease any use of the Solution upon such termination. The following provisions shall survive any termination or expiration of this Agreement: Section 9("Restrictions on Use"), this Section 11("Effect of Termination or Expiration"), Section 8("Ownership"), Section 12("Confidentiality"), Section 13("Representations and Warranties; Disclaimer"), Section 15("Indemnification") and Section 16("Miscellaneous").
- CONFIDENTIALITY. The parties acknowledge and agree that, as a result of negotiating, entering into and performing this Agreement, each party (the "Receiving Party") has and will have access to certain confidential information ("Confidential Information") of the other party (the "Disclosing Party"). Personal Information of End Users is considered Confidential Information of Subscriber. At all times the Receiving Party shall: (i) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (ii) not use the Disclosing Party's Confidential Information other than as necessary to perform its obligations under this Agreement, (iii) not disclose, distribute, or disseminate the Confidential Information to any third party (except to Representatives, as expressly permitted below), and (iv) disclose the Disclosing Party's Confidential Information to its Representatives on a "need to know basis;" provided that each Representative is bound by confidentiality obligations at least as restrictive as those contained in this Agreement.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMER. Each party represents and warrants that this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with its terms. MHE DOES NOT WARRANT THE COMPLETENESS, ADEQUACY, ACCURACY, OR USEFULNESS OF THE SOLUTION ANY OTHER MATERIALS OR SOLUTION PROVIDED HEREUNDER (COLLECTIVELY, THE "MATERIALS"). THE MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH ALL DEFECTS. MHE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, MHE MAKES NO WARRANTY THAT (i) THE MATERIALS WILL MEET THE REQUIREMENTS OF SUBSCRIBER, (ii) THE SOLUTION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MATERIALS WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE MATERIALS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY MHE, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES. To the extent that MHE may not as a matter of applicable law disclaim an implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
- INDEMNIFICATION. MHE shall indemnify, defend and hold harmless Subscriber from and against any and all liabilities, claims, demands, losses, damages, costs and expenses, including reasonable attorneys' fees, related to or arising out of any claim by a third party that the technology platform underlying the Solution infringes or misappropriates the intellectual property rights of such third party. Subscriber shall indemnify, defend and hold harmless MHE from and against any and all liabilities, claims, demands, losses, damages, costs and expenses, including reasonable attorneys' fees, related to or arising out of use of the Solution by Subscriber, except to the extent that such claim is subject to indemnification by MHE hereunder.
- MISCELLANEOUS. The Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions with respect to the subject matter of the Agreement, and neither party has relied upon any representation, express or implied, not contained in the Agreement. The rights and remedies of the parties are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under the Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. No modification of or amendment to the Agreement will be effective unless in writing signed by authorized representatives of both parties. If any provision of the Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties' intent. Subscriber may not assign or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of MHE, which consent MHE may grant or withhold in its sole and absolute discretion. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any purported or attempted assignment or other transfer or delegation in violation of this Section shall be null and void.